Citation Nr: 1515913
Decision Date: 04/13/15 Archive Date: 04/21/15
DOCKET NO. 11-17 065 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in St. Paul, Minnesota
THE ISSUES
1. Entitlement to service connection for a right ankle disability.
2. Entitlement to service connection for a left ankle disability.
3. Entitlement to service connection for a right knee disability.
4. Entitlement to service connection for a left knee disability.
5. Entitlement to service connection for a right shoulder disability.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of the United States
WITNESS AT HEARING ON APPEAL
The Veteran
ATTORNEY FOR THE BOARD
T. J. Anthony, Associate Counsel
INTRODUCTION
The Veteran had active service from August 1996 to July 1999. The Veteran also had reserve service periodically from 1999 to 2003 on inactive duty for training (INACDUTRA) and on active duty for training (ACDUTRA).
These matters come before the Board of Veterans' Appeals (Board) on appeal of an August 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota.
In November 2012, the Veteran testified at a hearing before the undersigned Veterans Law Judge via video conference. A transcript of the hearing is associated with the record.
The issues of entitlement to service connection for a left knee disability and entitlement to service connection for a right shoulder disability are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).
FINDINGS OF FACT
1. The competent evidence of record does not demonstrate a right or left ankle disability proximate to the claim, or during the appeal period.
2. The competent evidence of record does not demonstrate a right knee disability proximate to the claim, or during the appeal period.
CONCLUSIONS OF LAW
1. The criteria for service connection for a right ankle disability are not met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2014).
2. The criteria for service connection for a left ankle disability are not met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2014).
3. The criteria for service connection for a right knee disability are not met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2014).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
VA's Duty to Notify and Assist
Pursuant to the Veterans Claims Assistance Act of 2000 (VCAA), VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, and 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).
A VA letter issued in May 2010 satisfied the duty to notify provisions with respect to service connection. The letter notified the Veteran of the regulations pertinent to the establishment of service connection, and for the establishment of an effective date and disability rating in the event that service connection is granted for bilateral ankle disability and a right knee disability.
VA has also satisfied its duty to assist the Veteran. The service treatment records, VA treatment records, and private treatment records, as well as lay statements from the Veteran and other witnesses, have been associated with the claims file. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Veteran was provided VA examinations with regard to a bilateral ankle disability and a right knee disability in June 2014. To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Here, the examiner reviewed the claims file, considered the Veteran's reported symptomatology, conducted appropriate diagnostic testing, and addressed the likely etiology of the Veteran's disabilities at issue, providing supporting explanation and rationale for all conclusions reached. The examinations were thorough and all necessary evidence and testing was considered by the examiners. Therefore, the Board finds the examinations to be adequate.
In addition, the Veteran was afforded a hearing before the undersigned Veterans Law Judge (VLJ) in November 2012. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the VLJ who conducts a hearing fulfill two duties to comply with the above regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, the VLJ asked the Veteran specific questions concerning the symptoms of and treatment for his claimed bilateral ankle disability and right knee disability. The hearing focused on the elements necessary to substantiate the claims, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate the claims. In addition, the Veteran was assisted at the hearing by an accredited representative from Veterans of Foreign Wars of the United States. Furthermore, the VLJ solicited information as to the existence of any outstanding evidence. The VLJ specifically asked the Veteran whether he felt there was anything he would like to add to the record. In response, the Veteran noted the "buddy" statements that were already of record, and indicated that he otherwise had nothing more to add to the record. Thus, no pertinent evidence that might have been overlooked and that might substantiate the claims was identified by the Veteran or his representative. Neither the representative nor the Veteran has suggested any deficiency in the conduct of the hearing. Therefore, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2).
Finally, these matters were previously before the Board in May 2014 when they were remanded to the RO for additional development. Pursuant to the May 2014 Board remand, the RO obtained the Veteran's May 11, 2010 x-rays and updated VA treatment records from the VA Medical Center in St. Cloud, Minnesota, and associated them with the claims folder. The RO also scheduled the Veteran for a VA orthopedic examination as to his claimed disabilities. The Board therefore finds that the RO completed the May 2014 Board remand directives as to the claims for service connection for right and/or left ankle disabilities and service connection for a right knee disability. See Stegall v. West, 11 Vet. App. 268 (1998).
There is no indication in the record that any additional evidence, relevant to the issues adjudicated in this decision, is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009).
Legal Criteria
Generally, service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. § 3.303 (2014). To establish service connection for a disability, the Veteran must show: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).
The existence of a current disability is the cornerstone of a claim for VA disability compensation. See 38 U.S.C.A. § 1110; Degmetich v. Brown, 104 F.3d 1328, 1332 (1997) (holding that interpretation of section 1110 as requiring the existence of a current disability for VA compensation purposes cannot be considered arbitrary). In the absence of proof of a current disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).
Analysis
The Veteran contends that he suffers from bilateral ankle disability and a right knee disability that are related to his active service. Specifically, he contends that he has painful arthritis and swelling of the bilateral ankles and painful arthritis of the right knee as a result of his duties as an M181 tanker during active service, and as a result of a fall he experienced during a period of ACTDUTRA. See, e.g., November 2012 Board hearing transcript.
Having reviewed the complete record, the Board concludes that the preponderance of the evidence is against a finding that the Veteran has a current right ankle, left ankle, or right knee disability that was incurred in or is otherwise related to his military service.
As noted above, the threshold requirement for service connection is competent medical evidence of the existence of the claimed disability at some point during a veteran's appeal. See Degmetich, 104 F.3d at 1332; Brammer, 3 Vet. App. at 225. Although the Board recognizes the Veteran's sincere belief in his claims and description of his symptoms, the competent medical evidence of record does not show that the Veteran had a right and/or left ankle disability or a right knee disability at any point during or in proximity to the appeal period. Indeed, as discussed in further detail below, the record reflects that the June 2014 VA examination report included specific findings that the Veteran did not exhibit any pathology of the ankles from which to render a diagnosis, and that there was no basis for diagnosing a right knee disability.
In this regard, the Board affords significant probative weight to the June 2014 VA examiner's findings. The VA examiner considered the Veteran's reports of bilateral ankle and right knee pain and his medical history, both as presented by the record and as presented by the Veteran on examination. However, based on objective examination and evaluation, to include x-ray images, the VA examiner concluded that there was no current objective clinical evidence of disease or pathology of the Veteran's bilateral ankles or the right knee to provide a basis for diagnosis. The Board notes that the record is absent for any evidence that the Veteran reported ankle or right knee pain during active service. The record is also absent for any complaint to medical treating sources of, or treatment for, right and/or left ankle pain or right knee pain following active service, to include during the appeal period. Thus, the Veteran does not currently have a diagnosed right ankle, left ankle, or right knee disability, nor has he had such a diagnosis at any point during or in proximity to the appeal period. See McClain v. Nicholson, 21 Vet. App. 319 (2007) (holding that the requirement for a current disability is met if a disability has been present at any point during the claim period).
The Board recognizes that the Veteran has reported that he experiences bilateral ankle pain and swelling and right knee pain. However, the Board notes that symptoms such as pain do not, in and of themselves, constitute a disability for which service connection may be granted. See, e.g., Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999) (pain alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted). The June 2014 VA examiner noted the Veteran's complaints of bilateral ankle and right knee pain in the record and on examination, but concluded that the Veteran does not to have a diagnosable pathology of either ankle or of the right knee. The VA treatment records dated after the Veteran's active service do show that the Veteran has been prescribed pain relief medications. However, the prescription of pain medications, in and of itself, does establish the existence of a disability for which service connection may be granted.
The Board also recognizes the Veteran's statements indicating that he has arthritis of the bilateral ankles and the right knee. See, e.g., November 2012 Board hearing transcript. The Veteran, as a lay person, is competent to report past and current bilateral ankle and right knee symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, he is not competent to diagnose arthritis of the bilateral ankles or right knee. Arthritis is a complex medical condition that involves bodily system processes that are not observable by the senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The Veteran has not been shown to possess the medical expertise or knowledge required to diagnose a disease such as arthritis. Therefore, his statements do not constitute competent evidence that he has arthritis of the bilateral ankles and right knee. Furthermore, the competent medical evidence of record is absent for any diagnosis of arthritis of the bilateral ankles or right knee.
As noted above, in the absence of proof of a current disability, there can be no valid claim. Brammer, 3 Vet. App. at 225. In this case there is an absence of proof of a current right ankle, left ankle, or right knee disability. Without evidence of such a current disability, the Board need not address the other elements of service connection. As noted above, the Veteran's contentions have been considered by the VA examiner, and found to be inconsistent with the observed pathology of the bilateral ankles and right knee. The preponderance of the evidence is therefore against the claims, the benefit-of-the-doubt doctrine is not for application, and the claims must be denied. 38 U.S.C.A. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
ORDER
Entitlement to service connection for a right ankle disability is denied.
Entitlement to service connection for a left ankle disability is denied.
Entitlement to service connection for a right knee disability is denied.
REMAND
The Veteran contends that he suffers from a left knee disability and a right shoulder disability that are related to his active service. Specifically, he contends that he has painful arthritis of the left knee and a painful condition of the right shoulder as a result of his duties as a M181 tanker during active service, and as a result of a fall he experienced during a period of ACTDUTRA. See, e.g., November 2012 Board hearing transcript.
As to the Veteran's right shoulder, the record contains a May 2010 x-ray of the right shoulder showing mild acromioclavicular (AC) joint degeneration. The record further contains an October 2010 MR Arthrogram of the right shoulder showing slight to mild degenerative change of the right glenohumeral joint and mild arthrosis/osteoarthritis of the AC joint. As to the Veteran's left knee, the record contains an October 2010 MRI of the left knee showing focal grade I and questionable minor superficial grade II chondromalacia of the central patella.
The Veteran was afforded a VA examination for his right shoulder in May 2010. The VA examiner concluded that there was no diagnosis for the right shoulder because, although there are symptoms, there is no current clinical objective evidence of disease or pathology.
In its May 2014 remand, the Board found that the May 2010 VA opinion was inadequate because it did not discuss the May 2010 x-ray of the right shoulder and because it was rendered prior to the October 2010 MRI Arthrogram of the right shoulder. The Board instructed the RO to schedule the Veteran for a new VA orthopedic examination as to the claimed right shoulder disability. The Board also found that, in view of the October 2010 MRI of the left knee, the Veteran should be afforded a VA orthopedic examination as to the claimed left knee disability. The Board therefore also instructed the RO to schedule the Veteran for a VA orthopedic examination as to the claimed left knee disability.
On remand, the Veteran was afforded a VA orthopedic examination as to the claimed right shoulder disability and left knee disability in June 2014. The June 2014 VA examiner reviewed the claims file, examined the Veteran, rendered diagnoses, and provided opinions as to the likely etiology of the Veteran's right shoulder and left knee disabilities. With regard to the right shoulder disability, the VA examiner diagnosed the Veteran with mild AC joint arthritis and opined that it is less likely than not that the disability was caused by the claimed in-service injury. As rationale for the opinion, the VA examiner stated there was no service treatment record or line-of-duty determination of a right shoulder injury, and that there was a long latency of symptoms documented in the record. Specifically, the examiner noted that the reported injury occurred in 2002, but the first documented provider visit for the right shoulder was in 2010. The examiner indicated, "It is most likely that either the initial injury had resolved or there was not an injury at all or the injury reported in 2010 is most likely a supervening injury, interceding intervening event that occurred after active duty service."
With regard to the claimed left knee disability, the VA examiner noted the October 2010 MRI of the left knee, but opined that the Veteran does not now have nor has he ever had a knee and/or lower leg condition. Despite this finding that there is no current or past diagnosis of a left knee disability, the examiner opined that the claimed condition is less likely than not caused by the claimed in-service injury. As rationale, the examiner stated that there was no service treatment record or line-of-duty determination of a left knee injury, and that there was no evidence of continuous symptoms or continuous medical treatment between the Veteran's separation from active service and 2010.
The Board finds that the June 2014 VA examiner's opinions as to the right shoulder disability and left knee disability are inadequate, and that a remand to obtain a new VA opinion is therefore required. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Specifically, the VA examiner's opinions are inadequate because they were primarily based on the absence of documentation of treatment for the claimed disabilities. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006) (holding that although "the lack of contemporaneous medical records may be a fact that the Board can consider and weigh against a veteran's lay evidence, the lack of such records does not, in and of itself, render lay evidence not credible."). The VA examiner did not consider the Veteran's statements concerning symptoms experienced in service and continued after service. The Veteran is considered competent to establish the presence of observable symptomatology, and such lay testimony "may provide sufficient support for a claim of service connection." Barr, 21 Vet. App. at 307 (2007) (quoting Layno v. Brown, 6 Vet. App. 465, 469 (1994)). Instead, the examiner determined that documentation of the conditions in service and of treatment for the conditions during the period between separation from service and the date of the claim is the only evidence which can provide the basis for a positive nexus. The examiner also attributed the Veteran's current right shoulder disability to an intervening event, even though the record is absent for any evidence of any specific right shoulder injury at any time between the Veteran's separation from active service and the date of the claim.
The Board agrees with the June 2014 VA examiner that the record contains no service treatment records or line-of-duty determinations of an in-service right shoulder injury or left knee injury. However, the Veteran is competent to report his own experiences and injuries. See Layno, 6 Vet. App. at 469. In addition, in this case the mode of injury is consistent with the circumstances of the Veteran's service. See 38 U.S.C.A. § 1154(b) (West 2014). Specifically, the Veteran reports that the right shoulder and left knee disabilities are the result of his military occupational specialty as an M181 tanker during active service and a falling injury sustained during a night exercise. The Veteran's reports are consistent with the information listed in his DD Form 214 and with his period of ACDUTRA in 2002. Thus they are considered credible.
The credibility of the Veteran's reports is further bolstered by three "buddy" statements relating to his falling injury, which are dated September, October, and November 2010. The statements come from two fellow squad members who participated in the 2002 night exercise, one of whom was the squad leader, and from the Veteran's roommate who witnessed the effects of the injury. The "buddy" statements are consistent with the Veteran's accounts. In addition, there is no evidence that would impugn the credibility of the Veteran and other lay witnesses of record. Given the competency and credibility of the Veteran's statements regarding his in-service injuries, the Board finds that the evidence indicates that the Veteran did suffer the in-service injuries described, even though there are no contemporaneous service treatment records of such injuries. Thus, on remand, in providing an opinion, the VA examiner should treat the in-service right shoulder and left knee injuries reported by the Veteran in the record as having actually occurred despite the absence of contemporaneous service treatment records of such injuries.
The Board also finds that the June 2014 VA examiner's opinion as to the claimed left knee disability is inadequate because it is based on the apparently false medical premise that the Veteran does not have, nor has he ever had, a left knee condition. As noted above, and as acknowledged by the VA examiner in her report, the October 2010 MRI of the Veteran's left knee revealed chondromalacia. The VA examiner did not discuss whether this constitutes a left knee disability. On remand, the VA examiner must acknowledge the October 2010 MRI of the Veteran's left knee, and discuss whether the findings contained therein constitute a left knee disability.
Finally, the Board notes that the Veteran has consistently received treatment through the Minneapolis VA Health Care System and the St. Cloud VA Health Care System throughout the appeal period. VA treatment records currently of record date only through June 2014. Given the Veteran's consistent VA treatment history, there is a likelihood that there are outstanding VA treatment records dated from June 2014 through the present. On remand, all outstanding VA treatment records dated June 2014 through the present should be obtained and associated with the record. See 38 U.S.C.A. § 5103A (West 2002); Bell v. Derwinski, 2 Vet. App. 611 (1992).
Accordingly, the case is REMANDED for the following action:
1. Request all VA treatment records, to include from the Minneapolis VA Health Care System and the St. Cloud VA Health Care System, from June 2014 through the present, and associate any obtained records with the record.
2. Upon completion of the above development, forward the record and copy of this Remand to the VA examiner who conducted the June 2014 VA orthopedic examination or, if that VA examiner is not available, to a similarly qualified VA clinician to provide an addendum opinion as to the etiology of any current right shoulder disability and/or left knee disability. The examiner must indicate that the claims file was reviewed. The examiner should respond to the following:
(a) Diagnose all current right shoulder disabilities.
(b) Is it at least as likely as not (50 percent or more probability) that any current right shoulder disability was incurred in or aggravated by the Veteran's active service or manifested within one year after the Veteran's period of active duty?
(c) Diagnose all current left knee disabilities.
(d) Is it at least as likely as not (50 percent or more probability) that any current left knee disability was incurred in or aggravated by the Veteran's active service or manifested within one year after the Veteran's period of active duty?
The opinion provided must be supported by appropriate rationale.
In rendering the requested opinions, the examiner must note the October 2010 MRI of the Veteran's left knee, and must discuss whether the findings contained therein constitute a left knee disability. If the examiner concludes that the findings contained in the October 2010 MRI do not constitute a left knee disability, the examiner must provide appropriate rationale to support such a finding.
In addition, the examiner must note that the fact that there is no documentation of treatment in service or until 2010 is not necessarily fatal to the Veteran's claims and cannot be the only basis by which to reject a possible nexus to service. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006).
The examiner must also specifically consider and discuss the Veteran's contentions and the three lay statements of record from the fellow service members. The examiner must consider the Veteran's statements regarding the continuity of symptomatology.
The examiner must note that the Veteran is competent and credible in his reports of in-service right shoulder and left knee injuries sustained through his duties as an M181 tanker during active service and a falling injury in a night exercise during a period of ACTDUTRA. See 38 U.S.C.A. § 1154(b); Layno v. Brown, 6 Vet. App. 465, 469 (1994). Accordingly, the examiner should treat the in-service right shoulder and left knee injuries reported by the Veteran in the record as having actually occurred despite the absence of contemporaneous service treatment records of such injuries.
If the examiner determines that he or she cannot provide an opinion on the issue at hand without resorting to speculation, he or she must explain the inability to provide an opinion, and identify precisely what facts could not be determined. In particular, the examiner should specify whether an opinion could not be rendered because the limits of medical knowledge have been exhausted or whether additional information could be obtained that would lead to a conclusive opinion. If the examiner finds that the Veteran's disabilities are most likely attributable to an intervening injury, the examiner should specify what that intervening injury is.
4. After completion of the above, review the expanded record, including the evidence entered since the most recent Supplemental Statement of the Case, and determine whether service connection may be granted. If any benefit sought remains denied, furnish the Veteran and his representative with another supplemental statement of the case. A reasonable period should be allowed for response before the appeal is returned to the Board.
The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).
______________________________________________
U. R. POWELL
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs